Crowe v. Hall, 05-16918.

• Decision Date: 27 June 2007
• Docket Number: No. 05-16918.,05-16918.
• Citation: 490 F.3d 840
• Parties: Samuel David CROWE, Petitioner-Appellant, v. Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

490 F.3d 840

Samuel David CROWE, Petitioner-Appellant, v. Hilton HALL, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.

No. 05-16918.

United States Court of Appeals, Eleventh Circuit.

June 27, 2007.

Ann Grunewald Fort (Court-Appointed), Leslie S. Thomasson, Sutherland, Asbill & Brennan, LLP, Palmer Singleton, Southern Ctr. for Human Rights, Mary Elizabeth Wells (Court-Appointed), Fed. Def. Program, Inc., Atlanta, GA, for Crowe.

Susan V. Boleyn, State Law Dept., Atlanta, GA, for Hall.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

Samuel David Crowe, who pleaded guilty to the murder of Joe Pala and was sentenced to death, now appeals the denial of his petition for a writ of habeas corpus. We must decide whether Crowe has overcome the procedural default of four issues he raised for the first time in his state habeas petition. Crowe alleged that, during his sentencing trial, (1) the state withheld evidence that the victim's coworkers had been investigated for drug use; (2) an improper reenactment of the murder occurred when the jury viewed the crime scene; (3) a courtroom bailiff made an improper remark to the jury; and (4) the jury engaged in premature deliberations. Because Crowe has not established prejudice from these alleged errors, we affirm the denial of Crowe's habeas petition.

I. BACKGROUND

On March 2, 1988, Crowe decided to rob his former employer, Wickes Lumber Company in Douglasville, Georgia, because he was experiencing financial difficulties. That evening, Crowe went to Wickes while manager Joe Pala was closing the store. Pala let Crowe in the store, and the two men conversed for a few minutes. When Pala turned to complete some paperwork, Crowe shot him in the back. As Pala stumbled away, Crowe fired two more shots at Pala but missed. Crowe struck Pala's head with a can of paint. Pala fell to the ground, and Pala's face was covered with paint. As Pala lay motionless, Crowe retrieved a crowbar from a store display and smashed Pala's skull. Crowe then stole $1,160.30 from the store and returned to his home, where he hid the gun, crowbar, paint can, and his paint-covered clothing.

The next morning, employees of Wickes found Pala's body. After a witness reported having seen the car that belonged to Crowe's wife, also a Wickes employee, parked at the store the evening of the murder, police questioned Crowe's wife and learned that Crowe had driven her car the night before and had undressed himself in the basement when he arrived home. Crowe was arrested that afternoon and gave the sheriff two consistent, tape-recorded confessions in which he explained in detail his commission of the crimes. In those confessions, Crowe admitted that he killed Pala because he needed the money to pay his bills, including his mortgage and a civil judgment.

Six months later, Crowe moved the trial court to suppress his confessions. He testified that he did not kill Pala, but rather arrived at the store after Pala was already dead. Crowe testified that he had confessed initially because he feared his wife had been charged with the murder. A year after the murder, Crowe gave a third, videotaped confession to the sheriff in which Crowe stated that he killed Pala after a heated argument in which Pala had threatened to tell Crowe's wife about Crowe's use of illegal drugs. Crowe stated that he was in fair financial condition at the time of the murder and stole the money only to make the crime look like a robbery.

Against the advice of his counsel, Crowe pleaded guilty to murder and entered a plea of guilty under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the charge of armed robbery. The state sought the death penalty, and a sentencing jury heard four days of evidence from the state and the defense, including testimony from police investigators and the two Wickes employees who discovered Pala's body. The jury found three aggravating circumstances—the murder was committed (1) during the course of an armed robbery and (2) for the purpose of receiving money, and (3) was outrageously and wantonly vile, horrible, or inhuman in that it involved depravity of mind and an aggravated battery—and issued its binding recommendation of a sentence of death on November 18, 1989. The judge also sentenced Crowe to life imprisonment for the armed robbery.

Crowe appealed and filed an extraordinary motion for a new trial. The trial court denied Crowe's motion for a new trial. The Supreme Court of Georgia affirmed Crowe's convictions, sentences, and the denial of the motion for a new trial. Crowe v. State, 265 Ga. 582, 458 S.E.2d 799 (1995), cert. denied, 516 U.S. 1148, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996).

Crowe filed a habeas petition in the Superior Court of Butts County, Georgia, and attacked his convictions and sentences on numerous grounds. Crowe raised several new grounds for relief. Four of those issues are the subject of this appeal: (1) the state improperly withheld police reports and interview notes relating to the May 1988 investigation of drug use by Wickes employees, which Crowe had recently obtained through an Open Records Act request; (2) the jury saw a prejudicial reenactment of the murder and heard off-the-record evidence during its view of the crime scene, as related by jurors in recent affidavits; (3) a courtroom bailiff told the jury that defense lawyers often block the jury's view of the defendant if the defendant is not going to testify, as related by a juror in a recent affidavit; and (4) the jury engaged in premature deliberations, as related by a juror in a recent affidavit.

The state court denied habeas relief. The court concluded that the four issues that are the subject of this appeal were procedurally defaulted when Crowe failed to raise them in either his direct appeal or his extraordinary motion for a new trial, and Crowe had not established cause for the default and prejudice from the alleged errors. The Supreme Court of Georgia denied Crowe's application for a certificate of probable cause to appeal.

Crowe filed a habeas petition in federal district court, 28 U.S.C. § 2254, and alleged 22 grounds for relief. The district court, in a careful and well-reasoned opinion, denied habeas relief, Crowe v. Head, 426 F.Supp.2d 1310 (N.D.Ga.2005), but later granted Crowe a certificate of appealability on the issue whether the four issues described above were procedurally defaulted. We expanded the certificate of appealability to allow us to reach the merits of those issues, if they were not procedurally defaulted.

II. STANDARD OF REVIEW

We review de novo the denial of habeas relief by the district court, McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir.2005), but Crowe's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which limits our review of the decisions of the state courts and establishes a "general framework of substantial deference" for reviewing "every issue that the state courts have decided." Diaz v. Sec'y for the Dep't of Corr., 402 F.3d 1136, 1141 (11th Cir.2005). Unless the decision of the Georgia court "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court," that decision will not be disturbed on habeas review. 28 U.S.C. § 2254(d); Clark v. Crosby, 335 F.3d 1303, 1307-08 (11th Cir.2003). Findings of fact by the state court are presumed correct, and Crowe bears the burden of rebutting that presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

The state habeas court found that the four issues involved in this appeal were procedurally defaulted under Georgia law because they were raised for the first time in Crowe's state habeas petition. See Black v. Hardin, 255 Ga. 239, 240, 336 S.E.2d 754, 755 (1985) ("[F]ailure ... to pursue [an issue] on appeal ordinarily will preclude review by writ of habeas corpus."). Because federal courts "will not review judgments of state courts that rest on adequate and independent state grounds," Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3477, 77 L.Ed.2d 1201 (1983), "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show `cause' for the default and `prejudice attributable thereto,'" Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989). We conclude that, even if Crowe could establish cause for the default of these issues, he cannot establish actual prejudice from the alleged errors. We discuss each of Crowe's allegations of error in turn.

A. Withholding of Police Reports

Crowe alleged in his state habeas petition that the state failed to disclose to the defense police interview notes and reports from a May 1988 investigation of drug use by Wickes employees, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Crowe argues that the suppression of these materials prejudiced his defense in two main ways: the evidence would have enabled him to impeach the two Wickes employees who testified at the sentencing trial, and it would have bolstered his theory that he killed Pala in an argument about drug use rather than for money. We disagree and conclude that Crowe has not established prejudice.

The first argument fails for two reasons. First, the alleged Brady evidence would not have enabled Crowe to impeach the testimony of the Wickes employees, Ben Covington and Huey Moss, because it was irrelevant to their testimony. Covington and Moss testified about their discovery of the crime scene the morning after the murder. They also testified...